Legal protection of the girl child against child marriage (Aure Yarinya) in Nigeria

Abstract

The purpose of this study is to interrogate how law, and Nigerian domestic law in particular, can be used to bring about a change in society with respect to child marriage. Despite international and regional prohibitions and national laws against the sexual abuse of the girl child in Nigeria, the practice of child marriage persists, predominantly in Northern Nigeria which is known for its strong religious and cultural leanings. Of the women in this part of the country, 45% are given out in marriage before their fifteenth birthday and usually with the obligation to become mothers within the first year of marriage. The reality is that marriage for girls of twelve years or even younger is not unknown. The significance of the problem however is related to the fact that certain aspects of Nigerian law, while not expressly supporting child marriage, acknowledge or recognise the practice. The issue is further complicated by inherent contradictions in the national jurisprudence. The existence of multiple conflicting and contradictory legal provisions, particularly with respect to the age of a girl child, and the admission in some of the Nigeria’s legislation that child marriage exists, raise questions about the condonation of the practice. In addition, there is customary law and Islamic law which do not necessarily reject the practice and which are ironically part of the applicable laws in Nigeria’s legal system. Further aspects of the discourse are the legalities which inhibit the direct application of ratified international and regional treaties, the express decriminalisation of sexual intercourse with a girl child as long as it is within marriage, and the complexities associated with federalism. The implications and consequences of child marriage have moved out of the private domain to the point where they now constitute bigger crimes in the public sphere, namely the danger to the lives of individual girls and the threat to the development of Nigerian society. This thesis looks at the practice of child marriage in general and specifically the issues of age and consent as they relate to capacity and consent to marriage, sexual intercourse and the right to non-discrimination and equality under Nigerian jurisprudence. It examines the nature, effects and legality of child marriage by investigating the reasons for the practice and the nature of legal response in Nigeria. It considers the position of the legal systems of constituent states on the application of international and regional human rights instruments to protect the girl child against child marriage, and evaluates the role of the Federal Government of Nigeria in dealing with the issue in light of its signature and ratification of international treaties and regional charters on the protection of the girl child. The thesis further analyses the conflicts that emanate from the interplay of differing customary law, Sharia and constitutional provisions on child marriage in Nigeria’s competing legal systems. Lastly, it proposes a law making model for the prohibition of child marriage by prescribing punishment and addressing other child marriage related issues.